Medical Monitoring

What do you do when you represent people who have been exposed to a dangerous substance but to date have not experienced an injury? Some lawyers have brought what is known as a medical monitoring claim, asking that the defendant be required to pay money to monitor the health of the plaintiff to identify and then treat health problems related to the exposure.

Plaintiffs in that situation are in a tough spot. If they wait until they suffer an “injury” there will be an argument that a statute of limitations or a statute of repose has run. If they file suit too early the defendant argues that the plaintiffs have not been injured and therefore do not have standing to bring a claim.

What is the state of the law on this issue? The Supreme Court of Michigan has just ruled that plaintiffs may not bring this type of claim. In Henry v. The Dow Chemical Corp. plaintiffs claimed that they were exposed to dioxin and needed medical monitoring. Dioxin is known to cause cancer, liver disease, and birth defects. The State of Michigan determined that the most likely source of the contamination was Dow’s Midland plant.

The Court rejected the claims, saying that Michigan tort law required an actual, present injury for the plaintiffs to recover damages, and that claims for medical monitoring were an issue for the state legislature.

The dissent is fascinating and reflects a totally different philosophy of the role of tort law in society. Here is a sample: “Today, the majority holds that defendant’s egregious long-term contamination of our environment and the resulting negative health effects to plaintiffs are just another accepted cost of doing business. But as long as defendant is not held responsible for the decisions it makes, it behooves corporations like defendant to continue with business practices that harm our residents because the courts will shield them from liability by claiming that they are powerless to act. And it is the people of our state who will pay the costs-with their money and with their lives-of allowing defendant to contaminate our environment with no repercussions. Sadly, this Court has resorted to a cost-benefit analysis to determine and,consequently, degrade the value of human life, and this is an analysis that I cannot support. … Today, our Court has shirked its duty to protect plaintiffs and the people of our state, thereby leaving defendant’s practices and interests unassailed. As such, I must respectfully dissent.”

Alabama, Nevada and Kentucky have also rejected this type of claim. West Virginia allows such claims. Bower v. Westinghouse Electric Corp., 522 S.E.2d 424 (W. Va. 1999).

One can only hope that if one or more of these plaintiffs or their children ever get ill from dioxin no court will hold that their claim is time-barred.

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